U.S. Supreme Court

Does Second Amendment Apply to States? Scalia Said No in 1997 Book

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When the U.S. Supreme Court hears arguments March 2 on whether the Second Amendment applies to the states, court observers will be watching to see if Justice Antonin Scalia’s views have changed since he wrote a 1997 book.

Scalia wrote that the Second Amendment does not limit arms control by states—an issue that is now before the court in McDonald v. Chicago, the Wall Street Journal reports. Asks the Wall Street Journal Law Blog, “Does Scalia still believe what he wrote?”

In the book, A Matter of Interpretation, Scalia said he viewed the Second Amendment as a guarantee that the federal government won’t interfere with the people’s right to keep and bear arms. Scalia’s views carried the day in District of Columbia v. Heller, when he wrote the majority decision finding that the Second Amendment protects an individual right to own handguns. The case concerned a regulation by the District of Columbia, rather than a state law, and did not determine whether the Second Amendment applies to the states through the incorporation doctrine.

But Scalia went further in the 1997 book, according to the stories. “Of course, properly understood, [the Second Amendment] is no limitation upon arms control by the states,” Scalia said.

Alan Gura, the lawyer who will ask the Supreme Court to strike down handgun bans in Chicago and Oak Park, Ill., has crafted an argument that he hopes will appeal to the justices. He will argue self-defense is protected by the 14th Amendment’s privileges or immunities clause as a privilege of citizenship, the Wall Street Journal says.

Previous court rulings had assigned the privileges or immunities clause to the “constitutional graveyard” and had instead relied on the 14th Amendment’s due process clause to apply protections in the Bill of Rights to the states, the newspaper says.

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